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Legal Briefing

Corporate and commercial | 01 December 2009

After much deliberation and delay, the ratification of the Lisbon Treaty appears to be back on track and could enter into force this month. Ireland, the only country to hold a referendum on the Treaty, ratified it on 2 October 2009, with Poland following closely behind by signing on 10 October 2009.

The last member state to sign was the Czech Republic which, after securing its requested opt out from the Charter of Fundamental Rights on 29 October 2009, signed the Treaty on 3 November 2009, following its constitutional court’s ruling that the Lisbon Treaty was indeed compatible with the Czech constitution, contrary to the challenge made by a group of Eurosceptic senators.

Background

The Lisbon Treaty was adopted on 13 December 2007 by all 27 member states and once in force will amend the existing EU treaties. Most of the changes brought about by the Treaty are institutional and structural in nature, with the aim of streamlining the procedures of the EU to cope better with the increased number of member states.

The provisions of the Lisbon Treaty include the creation of a fixed-term president of the EU Council and a High Representative of the Union for Foreign Affairs and Security Policy. The Treaty also formalises the European Central Bank as an institution of the EU and the EU itself has been formally attributed a legal personality, which will strengthen its ability to participate in international agreements. The Treaty also clarifies the EU’s role in areas of legal practice such as criminal law, alternative dispute resolution and family law, and makes the Charter of Fundamental Rights legally binding. Decision-making has been addressed by introducing a new system of qualified majority voting and making the co-decision procedure the norm, which will increase the power of the European Parliament.

Concessions obtained by Ireland and the Czech Republic

The Lisbon Treaty was initially rejected by the Irish people in a June 2008 referendum. However, after negotiations with the EU, the Irish government secured certain political and legal exceptions to the Lisbon Treaty, which will be included by way of protocol. The UK, Denmark, Poland and the Czech Republic (see below) have also agreed certain exceptions with the EU.

The guarantees Ireland secured relate to the following areas:

Taxation – the Lisbon Treaty will not make any change to the extent of the competence of the EU in relation to taxation.

Military neutrality – the Lisbon Treaty will not affect or prejudice Ireland’s policy of military neutrality. It is for Ireland to determine the nature of any aid or assistance it may provide to a member state who is the victim of a terrorist attack or armed aggression.

Education and family matters – the legal status given to the Charter of Fundamental Rights will not affect Ireland’s existing laws in relation to the right to life, the protection of the family and the protection of rights in respect of education. Ireland wanted to retain control over sensitive ethical issues.

One commissioner per member state – Ireland wanted to ensure it would keep a commissioner.

The Czech Republic’s President, Mr Vaclav Klaus, wanted an assurance that any property claims made by Germans expelled from the former Czech Republic in 1945 will not be permitted under the Lisbon Treaty. This was agreed by the European leaders at their summit on 29 October 2009 and the Czech Republic has been granted an opt-out from the Charter of Fundamental Rights in this respect.

Next Steps

In the meantime, the existing mandate for the European Commission expired at the end of October. The current Commission will continue under a temporary mandate until 1 January 2010 when it is expected that the new office will begin. As the Czech Republic has now ratified the Treaty, at the time of writing EU leaders are hopeful that the European Parliament will begin hearings into the nominated commissioners during November or early December.